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5TH CIRCUIT FLIPS, DEFENDANT WINNER IS NOW A LOSER

Last June, we reported that the 5th Circuit had ruled that a conviction for Texas robbery is not a crime of violence under the Armed Career Criminal Act.

Latroy Burris, who was convicted of being a felon-in-possession of a gun under 18 USC § 922(g)(1), was sentenced under the ACCA due to prior convictions for Texas robbery and Texas aggravated robbery. (The ACCA provides that a defendant with three prior convictions for crimes of violence or serious drug offenses must receive a sentence of 15 years to life instead of 922(g)’s usual zero-to-ten years.) Last year, Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence, and the 5th Circuit agreed.

Afterwards, the government moved for rehearing en banc, and the Court withdrew its Burris decision pending the en banc court’s decision in United States v. Reyes-Contreras, and the Supreme Court decision in Stokeling v. United States, which held that Florida robbery qualified as a crime of violence under the ACCA.

The 5th has now held that Sec 29.02(a)(1) is a crime of violence. It requires that a defendant “cause bodily injury.” Whether “caus[ing] bodily injury” requires the use of physical force under federal law “involves two issues,” the Court said, “(1) the relationship between causing bodily injury and the use of physical force and (2) the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause. The en banc court resolved the first issue in Reyes-Contreras, and the Supreme Court resolved the second issue in Stokeling.”

The Court also concluded that Sec. 29.02(a)(2), which outlaws “robbery-by-threat,” has as an element the attempted or threatened use of physical force. That subsection criminalizes “intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.” The Court said that because Sec. 29.02(a)(1), robbery-by-injury, requires the use of physical force, it necessarily followed that 29.02(a)(2), “threatening to cause imminent bodily injury,” also requires the “attempted use, or threatened use of physical force.”

Latroy Burris’ ACCA sentence was upheld.

United States v. Burris, 2019 U.S.App.LEXIS 10606 (5th Cir. Apr. 10, 2019)

– Thomas L. Root